innocent of any complicity or collusion: R. v. Fercan Developments Inc., [2013] O.J. No. 748 (C.J.). The Crown did not
appeal this decision.

[27] On the 31st day of the forfeiture hearing, the Crown
suddenly abandoned its application for forfeiture against
FirstOntario. The hearing was maintained in relation to the
application against Fercan and GRVN. The application judge
concluded that, although these were offence-related properties,
the evidence overwhelmingly led to the conclusion there was no
evidence of complicity or collusion by them or their owners with
Robert or those convicted in relation to the grow operation. The
Crown did not appeal this decision.

[28] FirstOntario then sought costs against the Crown before
the provincial court judge who had heard the forfeiture application. So did Fercan and GRVN. The application judge held
that the Crown’s forfeiture application was without merit from
the start. Any evidence the Crown had connecting Fercan and
GRVN to the grow operations was extremely speculative and
ignored the body of evidence rebutting any inference advanced
by the Crown against these innocent third party bystanders.
The decision to commence forfeiture proceedings demonstrated
an intransigent, “hardball” attitude, which continued throughout the hearing, such as refusing to provide disclosure of the
evidence relating to the grow operations even though such
disclosure would have been provided to an accused person. In
relation to FirstOntario, the Crown had initially not contested its
security interest, said it would advise of any change of position,
did not do so, then, even after obtaining documentary disclosure
of the validity of FirstOntario’s interest, aggressively resisted its
application to vary the restraint order, and conducted forfeiture
proceedings against it. The Crown’s explanation for suddenly
abandoning the proceedings against FirstOntario was not satisfactory. Overall, the conduct of the Crown towards FirstOntario
amounted to a marked and unacceptable departure from the
reasonable standards expected of the prosecution or Crown,
misconduct meriting an award of costs against the Crown on
a substantial indemnity scale. The application judge also
concluded that the Crown’s conduct in relation to Fercan
and GRVN met the standard for an award of costs against
the Crown.

[29] The Crown appealed. One of the arguments made on
appeal was that the provincial court judge lacked jurisdiction to
make an award of costs under the CDSA and that the applicants
should initiate an action in the Ontario Superior Court for
damages instead. This court rejected that argument. Writing on